) ) Joseph Rubner (also known as Yossi Rubner) v. Marvin Rubner in their capacity as Joint, 2018 ONSC 1934

CITATION : Rubner v.

Bistricer, 2018 ONSC 1934 COURT FILE NO.: 03-10/17 DATE: 20180322 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Joseph Rubner (also known as Yossi Rubner) and Marvin Rubner in their capacity as Joint Attorneys for property acting under a Continuing Power of Attorney for Property granted by Eda Rubner dated January 12, 2003 Applicants/Respondents by Cross-Application – and – Alexander Bistricer, Brenda Bistricer, Eda Rubner in her personal capacity, in her capacity as a Trustee of the Bistricer/Rubner Family Trust, and in her capacity as Bare Trustee through Eda Rubner Realty a sole proprietorship in the Lower Fourth Joint Venture, Michelle Levinson, and 975273 Ontario Limited Respondents – and – Brenda Bistricer Applicant by Cross-Application AND BETWEEN: Mattamy (Sixth Line) Limited, Mattamy (Oak) Limited, Mattamy (Penlow) Limited, 1214850 Ontario Inc., Bratty Building, Mattamy Realty Limited, and Ruland Realty Limited Plaintiffs by Counterclaim/Respondents – and – Eda Rubner, personally, Eda Rubner as sole proprietor of Eda Rubner Realty and as a Trustee of the Bistricer/Rubner Trust a.k.a. the Bistricer/Rubner Family Trust, Joseph Rubner, Alex Bistricer and Michelle Levinson Defendants by Counterclaim/Moving Party ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Arieh Bloom , lawyer for Joseph and Marvin Rubner, in their capacity as Joint Attorneys for Property of Eda Rubner John J.

Adair , lawyer for Joseph Rubner David S. Steinberg & Justin Nasseri , lawyers for the Brahm Rosen in his capacity as Litigation Guardian for Eda Rubner Wendy Greenspoon-Soer , lawyer for Alex and Brenda Bistricer Jonathan C. Lisus & Ian C. Matthews , lawyers for Mattamy Homes and affiliates

) ) ) ) ) ) ) ) ) ) ) ) ) )))) ) ) ) HEARD: February 5 and 6, 2018 REASONS FOR JUDGMENT F.L. Myers J. INTRODUCTION The Background Story [ 1 ] Marvin Rubner, Joseph Rubner, and Brenda Bistricer (née Rubner) are adult siblings. Their mother Eda Rubner is in her 90’s and does not have capacity to manage her own property. [ 2 ] In 1969, Karl Rubner, Eda Rubner’s late husband and the father of the three siblings, bought a 10 per cent interest in the Lower Fourth Joint Venture. The joint venture owned a block of land in Oakville. Over time, the land has become very valuable.

The remaining 90 per cent of the joint venture is now owned or controlled by affiliates of real estate developer Mattamy Homes. [ 3 ] Karl Rubner initially purchased the 10 per cent interest in Lower Fourth in the name of Eda Rubner Realty Limited. It is common ground that there is no such entity and that Eda Rubner was always the legal or titled owner of the family’s 10 per cent interest in the joint venture.

This case deals principally with the steps taken by the Rubner siblings in relation to the one-third shares of the 10 per cent interest that Eda and Karl Rubner intended each of them to have and enjoy. [ 4 ] Before their father passed away, Marvin Rubner managed many of the family’s interests with him. Marvin Rubner continued to manage family interests after his father passed away. Marvin Rubner wanted recognition from his siblings for his management efforts generally and, as a result, he claimed an unequal share of another family investment referred to as Kalber. Litigation ensued and is ongoing.

The matters currently before me are but one theatre in which the family’s litigation battles are being waged. [ 5 ] In breaking away from the family’s joint holdings and management, in early 2013 Marvin Rubner sold his one-third share of the family’s interest in Lower Fourth to Mattamy Homes. [ 6 ] Joseph Rubner lives with his mother and takes care of her. He has been content to leave his finances more intermingled with hers as he has been able to obtain what he needs from her over the years especially as her capacity began to wane.

Joseph Rubner initially opposed Marvin Rubner’s claim for recognition of his management efforts. He and his sister Brenda Bistricer joined forces against Marvin. [ 7 ] After a brief first marriage (that becomes marginally relevant below) Brenda Rubner married sophisticated American businessman Alex Bistricer and moved to New York. For US tax reasons, it seems to be important to Brenda and Alex Bistricer that

Brenda Bistricer is not seen to own or control assets in Canada. It has been to her advantage to keep assets and funds in the name of her family trust or in her mother’s name until such time as she needs to use the funds. [ 8 ] Brenda Bistricer not only opposes Marvin Rubner in litigation, she and her husband decided that they could obtain more money for her one-third share of the family’s joint venture interest in Lower Fourth than Marvin Rubner received for his share. Alex Bistricer took charge of negotiations with Mattamy Homes for Brenda Bistricer and Joseph Rubner.

To enhance their leverage in the negotiations, Alex Bistricer had Brenda Bistricer, Joseph Rubner, and their aged mother sue Mattamy Homes for $400 million. The litigation has not been well-received by Mattamy Homes to say the least. [ 9 ] Brenda Bistricer’s US tax problems were affected by issues involving the ownership of her one-third share of the family’s interest in Lower Fourth.

The tax problems have been of sufficient importance to her that she has taken positions in relation to her Lower Fourth interest and the income derived on that interest that drive the outcome of these proceedings. [ 10 ] Since Brenda Bistricer realized the scope of her US tax problem and obtained advice, she has denied that she owns the one- third of the family’s interest in Lower Fourth that had been earmarked for her by her parents.

As a result, it is agreed by all members of the Rubner family that Eda Rubner now owns that joint venture interest both legally and beneficially. [ 11 ] Under Eda Rubner’s 2003 will that was in place when Brenda Bistricer’s US tax issue was discovered, if Eda Rubner were to pass away, Brenda Bistricer’s share of Lower Fourth, if owned by Eda Rubner, would devolve to all three siblings equally. Brenda Bistricer would lose two-thirds of the value of her interest to her brothers.

To protect her ultimate right to obtain the income and capital on her one-third interest in Lower Fourth, despite the appearance of Eda Rubner owning the interest during her lifetime, Brenda and Alex Bistricer, with Joseph Rubner’s assistance, had their mother take a number of steps which are now under review.

These steps included: a. having Eda Rubner sign new wills in 2014 leaving Brenda Bistricer’s one-third share of the family’s Lower Fourth interest to her; b. having Eda Rubner sign blank cheques to let Brenda and Alex Bistricer draw at will income paid to Eda Rubner on Brenda Bistricer’s interest in Lower Fourth; and c.

Brenda discontinuing her claim against Mattamy Homes so as to be consistent with her claim that she does not personally own any interest in Lower Fourth. [ 12 ] As a result of their tactics, Brenda and Alex Bistricer left Eda Rubner as the plaintiff in a very strategic and significant lawsuit brought by Alex Bistricer for leverage to try to increase the price that Mattamy Homes will pay for Brenda Bistricer’s interest in Lower Fourth.

Eda Rubner has been left at risk of substantial costs in the lawsuit. [ 13 ] Joseph Rubner now ostensibly regrets his conduct siding with his sister at least in the Lower Fourth matter. Coincidentally, he has also realized that he has a financial interest in taking advantage of his sister’s tax embarrassment.

So he has switched sides, laments his mistreatment of his mother, and seeks to obtain a share of Brenda’s Lower Fourth interest and income. [ 14 ] I n December, 2014, after Brenda Bistricer denied owning her one-third interest in Lower Fourth, Eda Rubner commenced receiving income distributions referable to Brenda’s one-third interest. Prior to being declared incapable, Eda Rubner transferred funds by wire as directed by Brenda Bistricer from the income earned on that one-third interest.

Eda Rubner also signed blank cheques that Brenda and Alex Bistricer used to obtain those funds. [ 15 ] On November 9, 2016 Eda Rubner underwent a capacity assessment and was determined to lack capacity to manage her property shortly afterward. Prior to that time, I have insufficient evidence to make a conclusion that Eda Rubner lacked the capacity to manage her own affairs.

As her capacity waned, Joseph Rubner and Brenda Bistricer enjoyed Eda Rubner’s trust and had the consequent power to have her sign whatever they wanted her to sign. [ 16 ] Marvin and Joseph Rubner hold powers of attorney and stepped in to manage Eda Rubner’s property for her in August 2016. They commenced paying Eda Rubner’s litigation guardian and their lawyer (as attorneys for Eda Rubner) from her bank accounts that hold the income she received on Brenda Bistricer’s share of Lower Fourth.

They know that they are drawing money for their mother’s use that was supposed to go to Brenda Bistricer but for her tax problems. [ 17 ] In December 2016, Alex Bistricer filled-in and deposited for Brenda Bistricer two of the blank cheques that Brenda Bistricer and Joseph Rubner had previously had their mother sign. Alex Bistricer emptied the accounts holding the income received on Brenda Bistricer’s share of Lower Fourth before her brothers used up the funds under their powers of attorney.

The Proceedings before the Court [ 18 ] Joseph and Marvin Rubner, in their capacity as joint attorneys for property of Eda Rubner, apply for advice and directions seeking the following outcomes: a. A declaration that Eda Rubner is the legal and beneficial owner of the remaining one-third of the family’s 10 per cent interest in the Lower Fourth Joint Venture; b. A declaration that Brenda Bistricer has disclaimed or renounced any beneficial ownership she previously held in this interest; c.

An order requiring Brenda and Alex Bistricer to account for all proceeds withdrawn from two TD bank accounts registered in the name Eda Rubner Realty between September 2, 2015 and December 22, 2016; and

d. A declaration that all funds that the Bistricers withdrew from Eda Rubner’s accounts are held in trust for Eda Rubner. [ 19 ] Brenda Bistricer has responded with her own cross-application in which she seeks: a. A declaration that all funds that were held in the two TD bank accounts belonged to her as the proceeds of a gift from Eda Rubner; b. An order requiring her brothers to account for all proceeds withdrawn from the accounts from August 1, 2016 onwards; and c.

A declaration that all funds withdrawn from the accounts by her brothers are held in trust for Brenda Bistricer. [ 20 ] Brenda Bistricer has also brought an application against Brahm Rosen in his capacity as litigation guardian for Eda Rubner. She is seeking an order requiring Mr.

Rosen to account for any funds that Marvin and Joseph Rubner paid to him that were drawn from Eda Rubner’s accounts that held the income on Brenda Bistricer’s one-third interest in Lower Fourth that Brenda says has been gifted to her either previously or in her mother’s 2014 wills. [ 21 ] The cross-applications were heard together with a motion by Alex Bistricer for

summary judgment to dismiss a counterclaim brought against him by Mattamy Homes. Mattamy Homes responds by seeking leave to amend its counterclaim to plead the torts of inducing breach of contract and abuse of process against Alex Bistricer. The Positions of the Parties (

a) The Ownership of the Remaining Interest in Lower Fourth The Brothers’ Position [ 22 ] Purportedly acting under their powers of attorney on behalf of their mother, Marvin and Joseph Rubner argue that Eda Rubner owns absolutely the remaining one-third of the family’s interest in Lower Fourth. In support of this position, they submit that in a handwritten letter dated November 22, 1972 Eda Rubner declared her intention to hold the 10 per cent interest in the Lower Fourth Joint Venture in trust for each sibling in equal one-third shares.

The brothers submit that Brenda Bistricer’s subsequent conduct and words, whereby she unequivocally denies owning beneficial title, amounts to a legal disclaimer or renunciation of her share. As such, any interest once owned beneficially by Brenda Bistricer has resulted back to Eda Rubner. On Eda Rubner’s death that interest will vest in equal parts in each of the siblings under Eda Rubner’s 2003 will.

Therefore, Brenda Bistricer’s interest is now only an expectancy to inherit one-third of her original one-third of the family’s 10 per cent interest. [ 23 ] In addition, the brothers deny Brenda Bistricer’s claim that their mother gifted to her all the net income distributions after tax that Eda Rubner received and will receive in future on the remaining one-third interest in Lower Fourth.

If there was no valid gift to Brenda Bistricer, then she must repay all sums that she and Alex Bistricer have taken by wire and by cashing pre-signed blank cheques that Joseph Rubner and Brenda Bistricer obtained from Eda Rubner. [ 24 ] Lastly, the brothers say that the new wills that Joseph Rubner and Brenda Bistricer had their mother sign in 2014 are invalid. Therefore, they claim that Brenda Bistricer cannot rely on the wills as evidence corroborating her position that Eda Rubner gifted or bequeathed her one-third of the family’s interest in Lower Fourth.

As a result, the prohibition contained in s. 35.1 of the Substitute Decisions Act, 1992 that prevents holders of powers of attorney from utilizing property that they know is subject to a specific legacy is not applicable. There is nothing objectionable therefore in the brothers’ use of the income received by Eda Rubner on her Lower Fourth interest to pay Eda’s expenses. [ 25 ] The litigation guardian for Eda Rubner, Brahm Rosen, supports all of the brothers’ positions.

Brenda and Alex Bistricer’s Position [ 26 ] Brenda Bistricer agrees that Eda Rubner holds legal and beneficial title to the remaining one-third of the family’s interest in Lower Fourth. [ 27 ] Brenda Bistricer outright denies on oath that she or her family trust has ever owned any interest in Lower Fourth.

Rather, she says that it is and has always been Eda Rubner’s intention to bequeath the remaining interest to Brenda Bistricer. [ 28 ] In addition, Brenda Bistricer says that her mother has already gifted to her the net proceeds after tax of all distributions of income received and to be received in the future on the remaining one-third interest in Lower Fourth.

In support of this, she points to a family meeting that occurred in late 2012 or early 2013 in which Eda Rubner allegedly declared a one-time gift to Brenda Bistricer of the after-tax proceeds of all distributions that Eda Rubner will ever receive from Lower Fourth. [ 29 ] Brenda Bistricer submits that her position is supported by the wills drafted in 2014.

Because the remaining one-third interest and its proceeds are subject to a specific bequest under the new wills, Brenda Bistricer claims that pursuant to s. 35.1 of the Substitute Decisions Act , 1992 her brothers must account for all money that they have withdrawn from Eda Rubner’s Lower Fourth accounts. (

b) The Mattamy Homes Litigation [ 30 ] Mattamy Homes has stopped paying distributions on the final third of the Rubner family’s interest in Lower Fourth pending

determination of who owns the remaining interest. [ 31 ] After Marvin Rubner sold his interest to Mattamy Homes in 2013, Alex Bistricer, the sophisticated New York businessman, led over two years of discussions with Mattamy Homes executive Tim Warner. Together with Joseph Rubner and their lawyers and agents, Alex Bistricer sought to negotiate a more advantageous sale to Mattamy Homes of Joseph Rubner’s and Brenda Bistricer’s remaining two-thirds of the family’s interest in Lower Fourth. [ 32 ] Marvin Rubner sold his interest to Mattamy Homes for its value as undeveloped land.

Alex Bistricer claimed that Mattamy Homes sold the developable portion of the joint venture’s lands to itself and its partners to obtain profits as developers of the land and in doing so breached a right of first refusal in favour of the Rubners contained in the joint venture documents.

As a result, Alex Bistricer asserted to Mattamy Homes that Brenda Bistricer and Joseph Rubner are entitled to share in a piece of the development profits obtained by Mattamy Homes by its breach of the joint venture agreement or breach of fiduciary duty. [ 33 ] Joseph Rubner, Brenda Bistricer, Eda Rubner (both personally, for Eda Rubner Realty, and as trustee for Brenda’s family trust - the Bistricer/Rubner Trust) and the Bistricer/Rubner Trust on its own behalf, have sued Mattamy Homes for $400 million in support of Alex Bistricer’s theory.

Brenda Bistricer and the Bistricer/Rubner Trust were originally named as plaintiffs in the action as owners of the final one-third of the family’s interest. They have since discontinued and removed themselves from the action. As discussed, their position is now that neither of them holds or has ever held any interest in Lower Fourth and they are therefore not proper plaintiffs. That leaves Eda Rubner as the sole plaintiff respecting the interest initially intended for Brenda Bistricer. [ 34 ] Mattamy Homes has defended the action and brought a counterclaim adding Alex Bistricer and Brenda Bistricer as defendants.

It sues Brenda Bistricer as a beneficial owner under the joint venture documentation. Mattamy Homes’ position is that Alex Bistricer is either a party under the joint venture documents or he was holding himself out as an agent or trustee of the Rubner family’s interests. [ 35 ] Alex Bistricer is now seeking

summary judgment dismissing the counterclaim against him. His position is that he is not a party to the joint venture documents and he cannot be attributed any contract liability by virtue of any common law doctrine.

He maintains that his only involvement with Mattamy Homes was acting as a good son-in-law and brother-in-law helping to gather facts on behalf of the owners Eda and Joseph Rubner. [ 36 ] Mattamy Homes argues that Alex Bistricer orchestrated an outrageous $400 million claim for improper purposes and that the extent of his involvement and liability under the joint venture documentation is a genuine issue requiring a trial. In addition, Mattamy Homes is seeking leave to amend its counterclaim to add the torts of inducing breach of contract and abuse of process against Alex Bistricer.

OUTCOME The Ownership of the Remaining Interest in Lower Fourth [ 37 ] For the reasons discussed below, the parties agree and I find that Eda Rubner holds legal and beneficial title to the remaining one-third of the Rubner family’s 10 per cent interest in the Lower Fourth Joint Venture. [ 38 ] From at least 1972, if not before, a one-third share of the family’s 10 per cent interest in Lower Fourth was initially held in trust by Eda Rubner for Brenda Bistricer. By no later than March 2014, with prior planning, expressed intention, and deliberate conduct, Brenda Bistricer renounced or disclaimed her interest.

Beneficial title to her one-third share of the family’s 10 per cent investment in Lower Fourth resulted back to Eda Rubner. [ 39 ] As to income distributions, Brenda Bistricer’s argument that her mother made a gift to her of all future income distributions cannot succeed in law. But, Eda Rubner made one-off gifts of the income in her hands to Brenda Bistricer.

While the gifts of funds were made under suspicious circumstances, there is no evidence supporting any doubt that Eda Rubner always intended Brenda Bistricer to have those funds. [ 40 ] Unfortunately for Brenda Bistricer, there were unfinished or undelivered possible gifts outstanding upon Eda Rubner being declared to lack capacity. The giving or taking of blank cheques alone did not amount to a gift in law. As such, Brenda and Alex Bistricer had no entitlement to the funds taken by Alex Bistricer when he emptied Eda Rubner’s accounts in December 2016 after Eda Rubner had been declared to lack capacity.

She could neither effectively deliver a gift nor hold the necessary intention to gift at the time that the cheques were purportedly deposited. Eda Rubner’s attorneys held legal authority to make gifts to Brenda Bistricer in December 2016. They most assuredly did not do so. Brenda Bistricer also has no right to any future distributions that may be received by or on behalf of Eda Rubner. [ 41 ] Finally, s. 35.1 of the Substitute Decisions Act, 1992 does not apply to cash by its express terms. It does not assist Brenda Bistricer chase funds regardless of whether one views the 2014 wills as likely being valid or not.

To the extent that Brenda Bistricer relies on the 2014 wills as corroboration of her gift claims, she has not proven that the wills represent Eda Rubner’s knowing or intentional acts.

Regardless of whether the wills may someday be found to be valid or otherwise, I do not view them as corroborating evidence of the gifts claimed. [ 42 ] There is no impediment in law therefore to Marvin and Joseph Rubner encroaching upon the income received by Eda Rubner on Brenda Bistricer’s former share of Lower Fourth to pay Eda Rubner’s litigation guardian or their proper lawyers’ fees incurred as attorneys for Eda Rubner. [ 43 ] As a result, Brenda and Alex Bistricer are required to pay to Eda Rubner, by her attorneys, the sums of $165,000 (CDN) and the amount in Canadian dollars sufficient to purchase $246,500 (USD) being the amounts that they took from Eda Rubner’s accounts on December 22, 2016.

[ 44 ] The application against Brahm Rosen is also dismissed on the same basis. [ 45 ] The amounts being held back by Mattamy Homes on account of distributions on the Lower Fourth Joint Venture belong to Eda Rubner and are to be paid out to her in care of her attorneys. [ 46 ] These outcomes do not conform fully to the parents’ original intentions. Like many best laid plans, they g ang aft agley . However, Brenda Bistricer has tax issues and sibling issues that have led her and her husband to take specific steps that have legal consequences.

Summary Judgment and the Motion to Amend Pleadings [ 47 ] Mattamy Homes is granted leave to amend its counterclaim to plead the tort of inducing breach of contract. I make no findings on any limitation periods applicable to this claim. Leave is subject to the right of the defendants to the counterclaim to plead any limitation period defences as they may be advised. [ 48 ] The amendment sought to plead the tort of abuse of process is untenable on its face. Therefore leave to amend to plead this tort is denied [ 49 ] Alex Bistricer’s motion for partial

summary judgment is dismissed. There is a very significant risk of duplication of efforts and inconsistent findings were I to make findings sought in relation to Alex Bistricer now. Moreover, removing him from the litigation while leaving his spouse as a party to the counterclaim will not save costs or reduce the distress of expensive ongoing litigation. On balance, in the particular circumstances of this case, the risks of duplication and inconsistent verdicts outweigh the benefits of partial

summary resolution. See: Mason v. Perras Mongenais , 2018 ONSC 1477 , at paras. 32 and 103 . DETAILED FACTS The 1969 Joint Venture Agreement [ 50 ] By joint venture agreement dated January 21, 1969 Eda Rubner Realty Limited purchased an undivided 10 per cent interest in the Lower Fourth Joint Venture. It is agreed by all that no company was ever incorporated under that name. The parties accept that the 10 per cent interest was therefore owned by Eda Rubner in her personal capacity legally and, at the outset at least, beneficially too. [1] Brenda Bistricer says that this never changed. I disagree.

The 1972 Trust Declaration [ 51 ] Eda Rubner wrote a letter dated November 22, 1972 to a Mr. Jon Wagner of Ismor Investments Limited. He was a manager of the joint venture. In her own handwriting, Eda Rubner wrote: I would like to inform you that the one tenth that is in Eda Rubner Realty’s name in the above mentioned venture is being held in trust for her three children, one-third for Brenda Rubner, one-third for Marvin Rubner, one-third for Joseph Rubner. [ 52 ] The letter found appears to be an original. Neither party has been able to confirm that the letter was sent to Mr. Wagner in 1972.

Marvin Rubner did send a copy of the 1972 letter to an accountant at Mattamy Homes on March 11, 2003 while his father Karl was still alive. The Bistricer/Rubner Family Trust [ 53 ] By deed dated July 30, 1981 Karl Rubner settled the Bistricer/Rubner Family Trust. The trustees of the trust were Karl Rubner, Marvin Rubner, Eda Rubner, and Simon Rosenfeld. The beneficiaries are Brenda Bistricer, Michelle Bistricer (daughter of Brenda, whose married name is now Michelle Levinson) and the children of Brenda Bistricer.

Brenda Bistricer has no other children. [ 54 ] Marvin Rubner’s evidence is that the trust was originally settled in order to protect the family’s assets in the event of a divorce between Brenda and Alex Bistricer. Alex and Brenda dispute this claim. But Brenda acknowledges that her parents’ desire for the trust was related to difficulties that resulted from her prior marriage. [ 55 ] Brenda’s family trust might have suffered a deemed disposition for tax purposes in 2002 – twenty-one years after it was settled. No one took account of this tax incident.

In addition, by its terms, Brenda’s family trust was supposed to end when Michelle Levinson turned 30 years old. That happened in 2006. Just as the trustees did not deal with the tax deemed disposition, they also did not distribute the assets of the trust to the beneficiaries on or after 2006. [ 56 ] When Marvin Rubner went to sell his interest in Lower Fourth to Mattamy Homes, the parties all began looking at the technicalities of ownership for conveyancing purposes.

For reasons discussed below, it seemed for a time that Brenda Bistricer’s one- third share of Lower Fourth might have become an asset of her family trust. The tax implications for the Bistricers here and in the US of the deemed distribution in 2001 and the risk of the interest being deemed to have been distributed into Brenda’s personal name upon the trust ending in 2006 became acute. [ 57 ] There are no documents showing a transfer into Brenda Bistricer’s family trust of her beneficial interest in Lower Fourth.

Moreover, while Marvin Rubner and the parties’ father might have believed that her interest was in Brenda’s family trust, the accountant confirms that it was never listed or accounted for as a trust asset. Brenda’s family trust never declared Brenda Bistricer’s one-third share of the distributions from Lower Fourth as income or revenue of the trust. The trust did not pay cash calls demanded by management of the Lower Fourth Joint Venture throughout the 1980s. The 1982 Memorandum of Partnership

[ 58 ] In 2013, the parties located an unsigned partnership agreement dated August 2, 1982. This agreement purported to create a partnership between The Eda Rubner Trust, Karl Rubner and Eda Rubner under the name “THE E. & K. PARTNERSHIP.” The memorandum of agreement listed the Lower Fourth Interest as an asset: 4. The parties hereto shall contribute to the partnership all and any interest which they have in certain lands and premises as set out below pursuant to the provisions of Section 97(2) of the Income Tax Act of Canada ; […] (

b) Lower Fourth in the Town of Oakville – a 10 per cent interest valued at approximately $240,000.00; [ 59 ] The parties agree that this partnership was never formed. 975273 Ontario Limited [ 60 ] In a handwritten letter dated February 17, 1992 addressed to Mr. Wagner, the joint venture manager, Karl Rubner purported to transfer Eda Rubner Realty’s interest in the joint venture to a numbered company: Dear Mr.

Wagner, Eda Rubner Realty hereby transfers its entire interest in Lower Fourth on its own behalf and beneficial owners to 975273 Ontario Limited. 975273 Ontario Limited hereby agrees that it is holding title to the aforesaid interest and agrees to assume all obligations and is entitled to all benefits of all joint venture agreements related in the place of Eda Rubner Realty.

Please make sure you change your records to reflect the foregoing. [ 61 ] This letter was accompanied by a declaration signed by Karl Rubner stating that the numbered company holds the Lower Fourth interest in trust for Marvin Rubner, Joseph Rubner and Brenda’s family trust: The undersigned hereby declares that it is holding the entire interest in its name in the Lower Fourth Oakville property in trust for and the benefit of: Bistricer-Rubner Trust 1/3 interest Marvin Rubner 1/3 interest Joseph Rubner 1/3 interest [ 62 ] Like the 1972 letter, there is no evidence that these documents were delivered to Mr. Wagner.

This letter is consistent with the finding that Eda Rubner has always held her interest in trust for the children. But, as noted above, it seems clear that after Karl Rubner settled Brenda’s family trust, he apparently thought that he or Eda Rubner had or could transfer Brenda’s beneficial interest into her family trust. Joint Venture Amending Agreement June 26, 2001 [ 63 ] By amending agreement dated June 26, 2001, the joint venture parties amended the original January 21, 1969 joint venture agreement.

On the title page, one of the parties to the agreement was listed as “Edna Rubner Realty Limited.” A handwritten change initialed by Marvin Rubner altered this with the following notation: Ed n a Rubner Realty Limited [IN TRUST FOR BISTRICER/RUBNER TRUST, MARVIN RUBNER and JOSEPH RUBNER] [ 64 ] The same handwritten changes were also made to the back signing page, as well as

Schedule B, showing the percentage ownership between the various joint owners. [ 65 ] Marvin Rubner’s evidence is that he made this change on the instruction of his father. He concedes that he did not seek or receive the authority of any of the beneficiaries of the trusts to make this change. However, this was his understanding of ownership at that time. Payment of Cash Calls 2009 - onwards [ 66 ] Karl Rubner passed away in 2005. In managing the family’s interests, Marvin Rubner accounted for cash calls made by Lower Fourth as paid by Eda Rubner for a number of years.

However, commencing in 2009, he felt that each of the three beneficial owners should pay their own share of the cash calls required by the Lower Fourth. While each sibling acknowledges that they paid a one-third share of the cash calls, they disagree about their understanding of on whose behalf these payments were made. [ 67 ] Marvin and Joseph Rubners’ evidence is that they paid the cash calls on the understanding that they were the beneficial owners. Brenda Bistricer’s evidence is that she paid the cash calls on the understanding that she was acting on behalf of Eda Rubner.

She claims that she took on this responsibility because her mother was no longer comfortable making such large payments at her advanced age. However, because she believed that she would eventually inherit the interest and be gifted any proceeds of income distributions, she

was comfortable with this arrangement. In cross-examination, Brenda Bistricer testified: 125 Q. And so your evidence here is to help your mother you guys all paid these cash calls? A. Not only to help out. She told us she was giving it to us eventually, and she says, you know, you understand – she didn’t have a steady income. She was living off social security and some reparations from Germany. Whatever was in the bank, somehow she didn’t realize this was also her money to be used. Her personal bank account.

When you get older, you get a bit worried if you don’t have business coming in, and she asked us to pay since in the end she was going to gift it to all of us. So we paid it. 126 Q. So you didn’t pay it because you had a beneficial interest; correct? A. Not a beneficial interest. The Family Meeting – 2012/2013 [ 68 ] Brenda Bistricer’s evidence is that Eda Rubner conveyed her intention to bequeath to her a one-third interest in the family’s investment in Lower Fourth at a family meeting that occurred in Toronto. By this time, Marvin and Joseph Rubner had asserted their own ownership of their interests.

As part of this arrangement, Brenda Bistricer’s evidence is that Eda Rubner also stated her intention that she would receive future distributions referable to the remaining one-third, pay any applicable income tax, and gift the remainder to Brenda Bistricer. According to Brenda Bistricer: 86 Q. Around what time did your mother tell you that she was making a gift to you? A. When Marvin first came to discuss that he wants to sell, that it was an offer for the joint venture for the Rubner portion, Eda Rubner Realty portion, he came to my mother. It happened to be I was in Toronto at the time.

We sat at the dining room table. Mother at the head of the table, Marvin sat there, Joseph sat there, I sat there, I believe Alex was there too at that time, and said he wants to sell and he thinks we should all sell. Whatever. And he wanted my mother to sign off on it and she said, “Look, why don’t I just sell it because it’s in Eda Rubner Realty. You want to sell a third, I will sell it, and I’ll give you the proceeds. I’ll pay the tax and give you the proceeds.” And he said, “No, no.

I want it in my name and I want to take it out.” She said, “Don’t you trust me.” Those were exactly her words and he insisted on it. He was very angry. She said, “Okay. If you want to do it that way, that’s fine.” [ 69 ] Brenda Bistricer was cross-examined further on the alleged gift later. Her evidence was clear that there was no cheque-by- cheque gift of proceeds as they came in. Rather, at the family meeting, Eda Rubner made a once-and-for-all gift of all proceeds and future proceeds referable to the remaining one-third share to Brenda net of taxes to be paid by Eda Rubner: 626. Q.

And so in terms of the gift that you are describing from your mother, I want to understand whether or not it was your understanding that the gift would be made to you on a cheque by cheque basis? In other words, the money comes to your mother and she takes it into income and says, “With respect to this cheque I just received, I am giving it to you as a gift.” Or was it your understanding that with respect to any cheques that come to her that she takes into income, once the money is taken into income she doesn’t have to give you a new gift, it just goes to you? A. Exactly 627. Q. So the second thing I said? A.

Yes 628. Q. All right. So can we agree, and I am happy for you to correct the words if you think I am misstating it but this gift that you are talking about is a gift as it relates to all distributions including any future distributions? A. That’s correct. [ 70 ] When asked on what date this meeting occurred, Brenda Bistricer gave various answers. At first, it occurred prior to the sale of Marvin Rubner’s interest in February 2013. Later in her cross-examination, she placed the meeting directly before Lower Fourth’s cash distributions commenced in December 2014.

She acknowledges that there is no written documentation of what occurred at this family meeting. [ 71 ] Joseph Rubner’s evidence is that he cannot recall exactly who said what at the meeting. He recalls that someone at the meeting brought up the idea that Eda Rubner could declare the income from any distribution proceeds and gift the rest but could not remember who said it.

He was, however, able to recall that once the distribution proceeds came in, he was approached by Alex Bistricer who asked him to follow through in this way. [ 72 ] Marvin Rubner denies that there was ever any intention to bequeath the interest or gift the proceeds of income distributions. He claims to have never heard this proposition until August 2016 when he took control of Eda Rubner’s accounts under his power of attorney. The Sale of Marvin’s Interest - February 13, 2013 [ 73 ] On February 13, 2013 Marvin Rubner closed the sale to Mattamy Homes of his one-third of the family’s investment in the Lower Fourth.

In the lead up to the closing, there was correspondence between the parties’ lawyers illustrating the emerging dispute about the legal and beneficial ownership of the family’s 10 per cent interest.

Schusheim memorandum - July 26, 2011 [ 74 ] The Bistricers consulted tax lawyer Evelyn Schusheim in 2011 to consider how to deal with the risks associated with the taxes that could accrue to the Bistricers due to the deemed disposition in 2001 of the assets in Brenda’s family trust and the requirement for its dissolution in 2006. In a memo dated July 26, 2011 Ms.

Schusheim raised the concept of disclaimer for Brenda Bistricer and her daughter Michelle Levinson: There has been some discussions about Brenda and her daughter disclaiming their interests in the Trust, which would eliminate the tax problem that the Family Trust would otherwise have if the assets are distributed to non-resident beneficiaries.

There was also considerable discussion regarding the time limit for reassessing the 2002 taxation year of the Family Trust. […] If a disclaimer is made by Brenda and her daughter, Brenda’s mother will become the beneficiary of the Trust as a result of common law which provides that where there is a failure of a beneficiary, the property of a trust reverts to the settlor. The Trust is drafted very strangely in that the only beneficiaries are Brenda and her issue but if there are no issue there is no gift over provision.

Bosschart letter – April 3, 2012 [ 75 ] On April 3, 2012, Leonard Bosschart, a lawyer for Brenda Bistricer, responded to letters written to him by Marvin Rubner’s lawyer Richard Winter. In response to the potential that Brenda could make a voluntary disclaimer, Bosschart wrote: I would like to make just a few comments in reply to your letter of March 28, 2012 (and will use your numbering for consistency and ease of reference): 3.

We are certainly looking into the possibility of our client and her daughter disclaiming their interests in the Trust and will be getting back to you on this once we have completed our discussions with our client and her U.S. advisors. As regards the bare trustee/undisclosed principal option, we appreciate your position vis a vis advising the Trustees on this. We are prepared to look at this option but from our perspective, as a first step, our client's U.S. tax advisors would need to give their views on this option.

Should it cause tax problems for our client in the U.S., then we would not be interested in pursuing this option any further. Bosschart letter – January 17, 2013 [ 76 ] As the closing of Marvin Rubner’s sale of his interest to Mattamy Homes neared, he needed to be able to document his ability to convey his title to his undivided one-third interest. The Bistricers meanwhile were progressing in their review and structuring of their tax issues. They took the position that the one-third interest referable to Brenda Bistricer was not held by her family trust.

By that time, Marvin Rubner had located the 1972 letter written by his mother that declared her ownership of the 10 per cent interest in the Lower Fourth joint venture subject to trusts in favour of her children. In a letter dated January 17, 2013, Mr. Bosschart confirmed: We understand that Ms. Bistricer has taken the position that the Trust does not own any interest in the joint venture, but rather, that the interest that had been thought to belong to the Trust is legally and beneficially owned by Mrs. Rubner. Mrs. Rubner’s position on this issue is unclear to us at this point in time.

As trustee, Marvin Rubner has reviewed all available documentarian and concluded that it supports the view that the interest in the joint venture is held in bare trust by Eda Rubner Realty, or its successor in law, and that he and his brother, Joseph Rubner, each personally own a 1/3 portion of that interest, with the remaining 1/3 being held subject to the terms of the Trust. [ 77 ] This is the first reference by Brenda Bistricer that her one-third share in the Lower Fourth Joint Venture was owned beneficially by Eda Rubner.

Statutory Declaration – February 13, 2013 [ 78 ] To assist Marvin to close the sale of his interest, on February 13, 2013 all four family members signed a statutory declaration. It affirmed: WE, EDA RUBNER, MARVIN RUBNER, JOSEPH RUBNER, BRENDA BISTRICER, AND EDA RUBNER AND MARVIN RUBNER, AS TRUSTEES OF THE BISTRICER/RUBNER TRUST, DO SOLEMNLY DECLARE, JOINTLY EXCEPT WHERE NOTED, THAT: 1. Each of us is over the age of eighteen years and have knowledge of the matters hereinafter deposed to. 2.

Eda Rubner has one daughter, Brenda Rubner (whose married name is Brenda Bistricer) and two sons, Marvin Rubner and Joseph Rubner, and Eda Rubner carries on business as Eda Rubner Realty. The JV Interest held by Eda Rubner Realty is held in trust as to 1/3 rd thereof for Marvin Rubner. 3. The Trustees of the Bistricer/Rubner Trust hereby declare that the Bistricer/Rubner Trust has no direct or indirect interest in the JV Interest.

[…] 5. Marvin Rubner and Joseph Rubner declare that 975273 Ontario Limited (“975273”) does not have any interest in the JV Interest and Marvin Rubner and Joseph Rubner are the sole officers of 975273 and have authority to bind 975273. [ 79 ] The family members signed a number of confirmatory documents supporting their statutory declaration. The documents were cleverly drafted in that they showed positively that Marvin Rubner held marketable title to his one-third without committing Brenda Bistricer as to who owned her one-third share.

She had apparently received enough advice by that time to know that she did not want the Lower Fourth interest to be held by her family trust. Mr. Bosschart had by that time said that Brenda Bistricer claimed that the interest was owned by Eda Rubner. But she was apparently not yet ready to swear her oath or affirmation to the position as she has done subsequently. 2014 Wills [ 80 ] Eda Rubner had originally executed a will on January 12, 2003 at the same time as her husband. The will named Marvin and two neutral non-relatives, Norman Winter and Larry Iskov, as executors.

Under the 2003 will, the three children were named as the residuary beneficiaries of Eda Rubner’s estate in equal shares. [ 81 ] In 2013, Joseph Rubner contacted lawyer Zev Zlotnick to write a new will for Eda Rubner. Mr. Zlotnick met Eda Rubner with Joseph Rubner and Brenda and Alex Bistricer on January 18, 2014. Eda Rubner executed a new will at a second meeting with Mr.

Zlotnick, Joseph Rubner, and Brenda and Alex Bistricer on March 8, 2014. [ 82 ] It is clear from email correspondence that between the two meetings the structure and contents of the new will were dictated by Joseph Rubner and the Bistricers without reference to Eda Rubner. [ 83 ] The new will named all three siblings as estate trustees. By that time, the siblings were already engaged in the Kalber litigation. While Eda Rubner did not know the details of the litigation, she was apparently much distressed by the knowledge that her children were suing each other and her.

I am asked to believe that she chose to replace a majority of two neutral, trusted executors with her three warring children. [ 84 ] What actually happened was disclosed by Joseph Rubner in his cross-examination. He feared that his brother would be controlling their mother’s estate. He and Brenda Bistricer were then acting together and knew they could outvote Marvin. Joseph Rubner therefore instructed Mr.

Zlotnick to add them as executors knowing that the new will provided for a majority to govern in the event of a dispute. [ 85 ] The 2014 will included a new clause providing that Eda Rubner continued to hold legal and beneficial title to the remaining one-third interest in Lower Fourth and that she intended to bequeath it to Brenda Bistricer. It stated, viii. to transfer my interest in or proceeds from the real property joint venture arrangement in Oakville, Ontario known as “Lower Fourth” (the “Lower Fourth JV Interest”) to my daughter, BRENDA G. BISTRICER.

For greater certainty and clarification, one-third (1/3) of the Lower Fourth JV Interest has previously been transferred to my son, MARVIN RUBNER, and one-third (1/3) of the Lower Fourth JV Interest has previously been transferred to my son, JOSEPH STANLEY RUBNER, leaving a final one-third (1/3) interest in the Lower Fourth JV Interest to be transferred to my daughter, BRENDA G. BISTRICER, as aforesaid; and … [ 86 ] The gift provided in the will is expressed in a most ambiguous way. The estate trustees are instructed to transfer Eda Rubner’s “interest in or proceeds from” the remaining interest in Lower Fourth.

It is not clear if the gift is for the capital interest or if it is satisfied by paying the proceeds of income distributions on that interest. The gift is expressed in the disjunctive “or” suggesting that either the capital or the income will suffice. Perhaps the “proceeds’ refers to an alternative gift of proceeds of disposition in the event that the remaining one-third interest is sold before Eda Rubner’s death. But “proceeds” and “proceeds of sale” are not necessarily the same thing.

Moreover, there is no reference to what was to happen if the interest was sold and the proceeds were then spent, or inter-mingled with Eda Rubner’s other funds, or re-invested in something else. [ 87 ] Moreover, the inclusion in the will of a gift of the proceeds seems inconsistent with Brenda Bistricer’s claim that her mother had already made a gift of those proceeds to Brenda as she claims. [ 88 ] There are many open questions as to what the purported gift to Brenda Bistricer of her interest in Lower Fourth actually means in the 2014 will. [ 89 ] But one thing that is apparent in the 2014 will however, is that Brenda and Alex Bistricer had completed and were ready to implement their tax planning strategy by March 2014.

The new will is designed to evidence their view that Brenda Bistricer does not own and never owned the beneficial interest in the final one-third of the family’s investment in Lower Fourth. In taking her mother to Mr. Zlotnick to have her bequeath the interest, Brenda Bistricer was acknowledging that she was not the owner of beneficial title to the final one-third of the family’s interest in Lower Fourth. She and Alex Bistricer implicitly or explicitly represented to Mr.

Zlotnick that Eda Rubner owned the legal and beneficial title to the Lower Fourth interest and its proceeds and was entitled to convey those interests in her will. [ 90 ] Some months later, Joseph Rubner called Mr. Zlotnick to mention that he had heard that people can make two wills in order to avoid paying probate fees. Mr. Zlotnick looked into the issue and prepared primary and secondary wills for Eda Rubner to replace the will signed earlier in the year. Mr. Zlotnick re-attended before Eda Rubner with Joseph Rubner, Brenda Bistricer, and Alex Bistricer to execute these wills in September 2014. [ 91 ] Mr.

Zlotnick recognized that a witness might be required to one day give testimony about the execution of the wills. He brought a rabbi with him to serve as a witness. He recommended that the family should pay the rabbi $100 to “make it legit.”

Joint Venture Distributions Commence in December 11, 2014 [ 92 ] In December 2014, after Brenda Bistricer had already implemented her tax strategy to deny owning her interest, Lower Fourth commenced making distributions.

As Eda Rubner Realty continued to be shown as the titled owner on the joint venture’s books, Lower Fourth made the cheques payable to that business name. [ 93 ] Lower Fourth paid a first distribution on December 11, 2014 totaling $1,830,202.68. [ 94 ] It distributed $1,200,006.00 to Eda Rubner Realty on February 6, 2015. [ 95 ] Joseph Rubner and the Bistricers each took Eda Rubner to her bank to open accounts in the business name to receive the payments. The first bank account was a Canadian dollar account opened by Joseph and Eda Rubner on March 13, 2015.

The second was a USD account opened by Eda Rubner and Brenda and Alex Bistricer on June 7 th , 2015. [ 96 ] Since April 29, 2016 Mattamy Homes has withheld distributions on the final one-third interest and has deposited them in an interest-bearing bank account pending the resolution of the ownership issue. Andrews Ridge Initial Public Offering [ 97 ] Joseph Rubner testifies that he was approached by Alex Bistricer in August 2015 with an opportunity to invest in a real estate development that he was undertaking in Baltimore, MD.

He said that Brenda Bistricer was going to invest some of her funds in the Eda Rubner Realty US bank account. Alex Bistricer invited Joseph Rubner to participate in the opportunity. Joseph Rubner agreed. [ 98 ] Brenda and Alex Bistricer arranged for Eda Rubner to send US $1.5 million by wire(

s) to a US law firm acting for the development. Initially, US $1 million was for Joseph’s account and US $500,000 came from the USD account holding the income on Brenda’s Lower Fourth interest. Alex Bistricer then advised that, for some reason, Joseph Rubner was not allowed to invest more than Alex and Brenda Bistricer were investing. Therefore, Brenda Bistricer sent Joseph Rubner a cheque for US $250,000 drawn on the account holding her share of the Lower Fourth proceeds and signed by Eda Rubner, to equalize the investments at US $750,000 each.

Brenda and Joseph have Eda Sign Blank Cheques [ 99 ] Brenda Bistricer’s evidence is that after her mother gifted her the proceeds of all future distributions, she decided to leave the gifted funds in Eda Rubner’s bank account so that Brenda could use them to pay her Canadian expenses. When asked about why she did not open her own account and transfer the money, she acknowledged that she was content to leave the money in her mother’s account and to ask Joseph Rubner to have Eda Rubner sign a cheque anytime she wanted to use her own funds: 363 Q. Why didn’t you have the cheque book? A.

Because I kept it in case I needed to make us some cheques for my expenses here in Canada. I would say, [Joseph], please make out a cheque and my mother would sign it. 364 Q. So why didn’t you keep the cheque book, Mrs. Bistricer? A. I trusted my brother to keep it here. Don’t forget, my mother had to sign it. [ 100 ] Joseph Rubner’s evidence is that he was approached by Alex Bistricer in June 2015 with a request for possession of the cheque books for both accounts to allow Alex Bistricer to pay an accountant for the preparation of Eda Rubner’s 2014 tax returns.

Joseph Rubner acknowledges that one of the cheques, #00002, was used to pay the accountant’s bill in the amount of $4,350.00 and a second one was used to reimburse Joseph Rubner for the US $250,000 amount he paid on Brenda Bistricer’s behalf for the Andrew’s Ridge investment. [ 101 ] When Alex Bistricer returned the cheque books, Joseph Rubner’s evidence is that there were four cheques missing from each book. The cheques had been signed in blank by Eda Rubner at Joseph Rubner’s request in advance.

The Brothers Act under Powers of Attorney and Spend Money from the Accounts [ 102 ] Marvin and Joseph Rubner commenced acting for their mother under their powers of attorney for property in August 2016. They used funds in the accounts holding the proceeds of distributions on Brenda’s interest in Lower Fourth to pay expenses of Eda Rubner, such as the litigation guardian’s fees and their lawyers’ fees ostensibly as Eda’s attorney. Final Withdrawals – Alex Bistricer Zeroed Out the Accounts [ 103 ] On December 22, 2016 Alex Bistricer made two withdrawals in the amounts of US $246,500 and CAN $165,000.

These effectively cleared out the remainder of the proceeds in the Eda Rubner Realty accounts of distributions received from Lower Fourth. Alex Bistricer used cheques that had been signed by Eda Rubner in advance and were in the cheque books provided by Joseph Rubner to Alex Bistricer at his request despite Brenda Bistricer’s evidence that she was content to leave her money in the accounts to pay her Canadian expenses. ANALYSIS OF THE CROSS APPLICATIONS

If Necessary the Court can make Findings of Fact on Rule 14 Applications [ 104 ] In Hryniak v. Mauldin, 2014 SCC 7 , the Supreme Court of Canada confirmed that the 2010 changes to rule 20 of the Rules of Civil Procedure , RRO 1990, Reg 194, changed the landscape for

summary judgment motions and civil justice in Ontario. The court is now equipped with the power to resolve cases on a written record where there is no genuine issue requiring a trial. Moreover, on a

summary judgment motion in an action, rule 20.04 (2.1) enables the court, where it is the interests of justice, to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. [ 105 ] The question arises in this proceeding whether by analogy the enhanced fact-finding powers also apply to applications under rule 14 such as this one. While the rules and pre- Hryniak

interpretations suggest that where there are “material facts in dispute” the court should convert the proceeding into a trial, recent cases have suggested that the fact finding powers confirmed in Hryniak are also available to the court on a rule 14 application. There is no point converting an application into a trial of the issues if there is no genuine issue requiring a trial. Were that to happen, the

summary process of rule 14 would require trials when the full action process that is designed for trials does not even require one. That seems to be backwards. [ 106 ] In BlackBerry Ltd. v. Marineau-Mes , 2014 ONSC 1790 , at para. 2 , McEwen J. held, 2 Marineau-Mes seeks a declaration that the Contract is not a valid and enforceable contract, or in the alternative, an order converting the application to an action pursuant to rule 38.10 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194.

Marineau-Mes submits that there are material facts in dispute, particularly with respect to the issue of whether Marineau-Mes assumed the role of Executive Vice- President, Platform Development (”EVP”). It is my view, however, that proceeding by way of application is appropriate when one considers the guidance recently provided by the Supreme Court of Canada in Combined Air Mechanical Services Inc. v. Flesch , [ Hryniak v Mauldin ] 2014 SCC 7 (S.C.C.) .

The filed materials, including the transcripts, allow for a fair and just process and allow me to find the facts necessary to resolve the dispute and apply the relevant legal principles to the facts as found. [ 107 ] In other words, where the materials permit the court to resolve factual disputes in issue under Hryniak , then the court should dispose of the issues in a

summary fashion without a trial of the issues. Technically, I suppose, one could convert the application into an action, treat the affidavits as pleadings, treat the application as a motion for

summary judgment, and then resolve the matter under rule 20 if it is in the interests of justice and proportional to do so. As long as each party has had an opportunity to put its best foot forward and has realized that now is the time to do so, then applying rule 20 is consistent with the culture shift heralded by the Supreme Court of Canada. The goal of all civil litigation now is to enhance access to justice by decreasing the cost, delays, and distress of the trial process. Applying rule 20 powers by analogy to applications in appropriate cases seems like a small and obvious step (see also: Niro v.

Caruso, 2015 ONSC 7446 , at para. 53 ). [ 108 ] In the cross applications as between and among the Rubner family, I am satisfied that it is in the interest of justice to resolve these proceedings summarily. All of the parties’ evidence is before the court. Detailed cross-examinations were conducted. I have read thoroughly all of the transcripts. There is no purpose in a trial. In the few instances where drawing inferences, weighing evidence, or credibility findings are required, I am satisfied that the record allows me to find the facts and apply the relevant law. This process has been under way for many months.

The family parties intended to and did put their best cases forward. They are entitled to a decision determining the ownership of the one-third interest as that will drive several other issues and unlock the logjam that has prevented the Mattamy Homes litigation from proceeding. In all, I am satisfied that resolving these applications summarily is the most proportionate and fair process.

The 1972 Letter Created a Valid Trust [ 109 ] The creation of a valid trust requires proof of three certainties: 1. certainty of intention to create a trust; 2. certainty of subject matter (the property held on trust); and 3. certainty of objects (the beneficiaries of the trust). [ 110 ] In addition, the proponent must show that the trust was actually constituted - that the trust property was transferred to the trustee: Elliot (Litigation Guardian of) v.

Elliot Estate , 2008 CarswellOnt 7448 (Ont SCJ) . [ 111 ] The only issues between the parties are: (1) whether the 1972 letter establishes Eda Rubner’s certainty of intention to create a trust and (2) whether the trust was sufficiently constituted. [ 112 ] In order for a trust to be created, the wording of the document must be sufficiently clear to show that the settlor intended to create a trust. As stated in Mordo v. Nitting , 2006 BCSC 1761 , at para. 293 : 293 To meet the first certainty, there must be an intention on the part of the settlor to impose enforceable trust obligations on the trustee.

The language used by the settlor is critical and must show a clear intention that the recipient of the trust property holds that property on trust […] [ 113 ] Brenda Bistricer’s counsel submits that the certainty of intention cannot be satisfied where the document was never delivered to its intended recipient. In counsel’s submission, the 1972 letter should be treated like a draft email that was never sent.

She argues that it would be counterintuitive for the court to bind a would-be settlor to a draft that was only discovered by someone snooping through an email drafts folder 30 years later. [ 114 ] In support of her position, counsel for Brenda Bistricer cites Dusanjh v. Wright Estate , 2017 BCSC 340 for the proposition that certainty of intention is not satisfied where the trust document allows the would-be settlor or the beneficiary to make unilateral changes to the trust without notice to the other party.

[ 115 ] In Dusanjh , the question before the court was whether various corporate articles established a trust. In finding that they did not, the court was concerned with the principles of construction which assist in the

interpretation of a potential trust document that is unclear or ambiguous. In the case at bar, there is no ambiguity with respect to the construction of the trust document.

Whether on a plain reading of the words used or a purposive reading of the words in the context of the letter and the background factual matrix, both lead to a single conclusion - that Eda Rubner intended to hold undivided one-third interests in the family’s 10 per cent joint venture investment in trust for each child. [ 116 ] The argument under the Dusanjh case as relied upon by Brenda Bistricer really goes more to the question of whether the trust was duly constituted. Even if all three certainties are met, a trust must be duly constituted in order to be legally valid. In Milroy v.

Lord (1862), 45 ER 1185 (CA) , the court held: “In order to render a voluntary settlement valid and effectual, the settlor must have done everything which according to the nature of the property comprised in the settlement was necessary to have been done in order to transfer the property and render the settlement binding upon him .” In other words, the conduct of the alleged settlor must demonstrate that she transferred the property to the trustee in a manner that was intended to irrevocably divest herself of beneficial ownership. [ 117 ] If Eda Rubner could have torn up the letter without anyone knowing, counsel argues, no trust was constituted.

Eda Rubner had to tell someone to demonstrate that she had transferred the joint venture interests to herself as trustee. [ 118 ] However, the law provides otherwise. The Milroy case dealt with a situation with the settlor and the trustee were different people. Where the settlor names herself as trustee, the law provides that the settlor may satisfy this criterion with a simple declaration. As held in Elliot : 37 An express trust must be duly constituted.

Constitution may take place in various forms, but the method applicable to this case is by declaration of one’s self as trustee, which is sometimes also referred to as automatic constitution. This type of constitution occurs when the settlor and the trustee are the same person. The settlor effectively declares himself or herself to be trustee of a trust for someone else. Since the settlor is already the owner of the trust property, no physical transfer is necessary as title is already vested in the owner.

Such declaration means that the owner is thereafter divested of title in equity in favour of the beneficiary [Citations Omitted]. [ 119 ] Professor Waters agrees. See also: D.

Waters, Waters’ Law of Trusts in Canada, (Toronto: Carswell, 2012), 4th ed., at p. 204- 206. [ 120 ] Brenda Bistricer’s position is that Eda and Karl Rubner’s subsequent conduct, including not delivering the original letter, drafting the 1992 partnership papers, the incorporation of the numbered company, and Eda Rubner declaring the distribution proceeds as her own income for tax purposes from 2014 onwards, all demonstrate that Eda Rubner never intended to divest herself of beneficial ownership. [ 121 ] In support of this position, counsel for Brenda points to the case of Lynn Holdings Ltd., Re , 1996 CarswellBC 881 (BCCA) .

In that case, the would-be settlor opened a bank account and later changed its name to “trust account.” The would-be settlor began making deposits which were intended to satisfy GST payments owed to Revenue Canada. However at times the would-be settlor used the account to pay employee severance. At one point, a bank draft payable to Revenue Canada was issued on the account, but this was never delivered. When the would-be settlor filed a proposal in bankruptcy, Revenue Canada argued that it was the beneficial owner of the account money and therefore had priority over secured creditors.

The Court of Appeal rejected this argument. The court found that there was no certainty of intention and that the subsequent conduct of the would-be settlor demonstrated that the trust had been insufficiently constituted. At paras. 10-11: 10 In [the Crown’s] submission, the fact that the monies were placed in this particular account and the fact that the company intended to use the account for paying Her Majesty show that a trust was not only intended, but that it was effectively constituted and therefore the Crown became the beneficial owner of whatever was placed in it.

Again, I have difficulty in seeing how a trust could arise by the establishment of this account in combination with the intention eventually to pay G.S.T. from it. For one thing, there is not the certainty of intention required for the creation of a trust. The would-be beneficiary was uninformed of the account and the would-be trustee, Lynn Holdings, retained full control over it, meaning it could do whatever it wished with the funds. In fact, it did so - it paid $32,000 out for severance pay to employees and it intermingled non-G.S.T. receipts with G.S.T. receipts at will.

It never did pay any G.S.T. from this account. 11 For another thing, even if the intention to create a trust been shown, the company never did any act to bind itself as a trustee. The well-known and venerable case of Milroy v. Lord (1862), 45 E.R. 1185 , tells us that “In order to render a voluntary settlement valid and effectual, the settlor must have done everything which according to the nature of the property comprised in the settlement was necessary to have been done in order to transfer the property and render the settlement binding upon him.” This did not occur, in my opinion.

I see little distinction between this situation and the situation where a person decides to save some money for a new car and puts the money in a separate bank account. He retains control over it and at some point decides to use the money for another purpose. Obviously, he does not thereby commit a breach of trust, nor could he be found to have appropriated funds belonging in equity to the local car dealer. [ 122 ] Looking at the car scenario, the owner of the car as postulated never declared in writing that the funds were held in trust for an identified beneficiary.

Moreover, Eda Rubner did treat the trust as binding. First, the 1992 memorandum refers to transfers “on its own behalf and beneficial owners.” The document recognized expressly the separation of legal and beneficial title. Second, all other documents authored by Karl and Eda Rubner show that they always treated the interests as being held in trust. The sole exception is the unsigned partnership agreement. But there is no evidence as to the circumstances or possible meaning of that document.

Third, the evidence shows that the 1972 letter was sent to Mattamy Homes in 2003 while Karl Rubner was still alive and Eda Rubner had full capacity. In other words, there is nothing to any of the impugned actions that show that Karl or Eda Rubner acted in a manner inconsistent with the interest being held in trust. Rather, the entire line of evidence shows that as settlor Eda Rubner intended to hold the joint venture interests in trust. [ 123 ] Might Karl Rubner’s erroneous view that Brenda’s family trust held the joint venture interest show that the 1972 declaration of trust was insufficiently constituted?

In my view it does not. Brenda’s family trust was not settled until 1981. There could be no

uncertainty of the trustee, the beneficiary, the trust property, or intention in 1972 - years before Brenda’s family trust was brought intoexistence. In 1981, Karl Rubner might have erroneously thought that he was entitled to unilaterally change the trust vehicle to Brenda’sfamily trust. As discussed below, that was an error of law that was not effective.

But, in my view, it does not undermine at all theunderstanding of Eda Rubner that she had divested herself of the beneficial title and that she had since 1972, if not before, been holdingbeneficial title to one-third of the family’s interest for Brenda Bistricer. [124] In addition, it is immaterial that the would-be beneficiaries may not have been informed of the settlement of the trust. In Mellen,Re, [1933] OJ No 45 (Ont HCJ), aff’d [1933] OJ No 68 (CA), the would-be settlor deposited an envelope containing a $1,000 bond withthe Toronto General Trust Corporation.

The envelope was endorsed: “The contents of this envelope are to be used solely for the benefitof my dearly beloved son.” In finding that this amounted to a valid trust, the High Court of Justice held at para. 12: 12 It was immaterial that Edward Mellen, the son, was not aware of the creation of the trust. … A declaration of trust need not be madeby any formal instrument; a simple letter or memorandum or any writing of a similar untechnical or informal character will be sufficientif it clearly expresses the gift to be in trust and sufficiently connects the trustee with the subject matter of the trust. … The fact that thedocuments evidencing the trust remained in the possession of the settlor did not prevent the trust being completed and executed. …[Citations Omitted]. [125] I therefore find that the 1972 declaration of trust created valid trust interests under which Eda Rubner held as trustee undividedinterests in one-third of the family’s 10 per cent interest in Lower Fourth Joint Venture for each of the three siblings.

Later Efforts to Transfer Brenda Bistricer’s Lower Fourth Interest were Ineffective [126] The subsequent documents signed at various times had no legal effect on Brenda Bistricer’s beneficial title. The 1972 lettercontained no power of revocation. Therefore, the settlor had no power to revoke or alter the terms of the trust as declared. At para. 62 ofSchmidt v. Air Products Canada Ltd., (SCC), [1994] 2 SCR 611, Cory J. wrote for the majority: 62 The settlor of a trust can reserve any power to itself that it wishes provided the reservation is made at the time the trust is created.

Asettlor may choose to maintain the right to appoint trustees, to change the beneficiaries of the trust, or to withdraw the trust property.Generally, however, the transfer of the trust property to the trustee is absolute. Any power of control of that property will be lost unlessthe transfer is expressly made subject to it. [127] Absent a power to revoke the trust declared for Brenda Bistricer, Eda Rubner had no authority to move the trust property toanother vehicle or to dilute Brenda Bistricer’s ownership by adding as beneficiaries her daughter Michelle Levinson or any other childrenthat Brenda might have.

Therefore, even if there were efforts to move the one-third interest into the family trust settled for Brenda in1981, those efforts were unsuccessful. Brenda Rubner maintained her beneficial title to the one-third interest until she put in place her taxplan recently. Brenda Renounces her Beneficial Interest [128] The law permits a party to disclaim or renounce a beneficial interest.

As stated by Cromarty, J. in Re, Metcalfe, (ON SC), [1972] 3 OR 598 (Ont HCJ), at para. 11: 11 A concise statement of the law on this point, which I accept, is found in Williams on Executors and Administrators, 14th ed. (1960),vol. 2, p. 761, para. 1170: "The law certainly is not so absurd as to force a man to take an estate against his will." There is no authority to the effect that thedisclaimer must take place in a court of record; it may be made by deed, or even by conduct.

Prima facie, the disclaimer operates fromthe time of the testator's death and makes the gift void for certain purposes ab initio. 12 The effect of a disclaimer was dealt with in our own Courts in McFaden, Re, [1937] O.W.N. 404 (H.C.), where Hogg, J., said at p.405: In Bence v.

Gilpin (1868), L.R. 3 Ex. 76, Kelly C.B. in his judgment stated, at page 81: "A disclaimer to be worth anything must be anact whereby one entitled to an estate immediately and before dealing with it renounces it whereby in effect he says: 'I will not be theowner of this property'." And at page 82: "No man is bound to take an estate against his will and they never had taken it." As the order of the 10th of May, 1937, above referred to, declares that the Corporation of the Village of Fergus has disclaimed all giftscontained in the will of the testator, this municipal corporation is in the same position as if no gift had ever been made to it. [129] Disclaimer often refers to an initial rejection of a gift at the time when it is offered.

Renunciation generally refers to the rejection(or disclaimer) of an interest sometime after it has already arisen. The law recognizes partial disclaimer or a partial renunciation (see: Re,Coulson (1977), (ON CA), 16 OR (2d) 497 (CA)). This means that a beneficiary may renounce the balance of aninterest despite having previously received a portion of its benefits. See also: Biderman v. Canada, (FCA), at para.11; MacDonald Estate, Re, 2008 NSSC 253, at paras. 19-22; and M.

Cullity, Will – Income Interests – Renunciation after Acceptance –Partial Renunciation – Taxation, Can Bar Rev, 56.2 (1978), at p. 330. [130] Where a valid disclaimer or renunciation occurs, then, absent an alternative gift in the trust document, a resulting trust arises. Any beneficial interest held by the beneficiary reverts back to the settlor (see: Waters, 4th ed., at p. 455-456; and Chambers v. Chambers,2012 BCSC 82, at para. 29).

[ 131 ] The brothers submit that Brenda Bistricer has been engaged in an ongoing and continuous renunciation since she learned of the 1972 trust document. They point to her very clear and repeated statements in her statement of defence to counterclaim dated September 6, 2016, her January 11, 2017 affidavit, the notice of application dated October 2, 2017, her September 27, 2017 affidavit, and admissions made in her cross-examination. [ 132 ] For example, in para. 25 of her January 11, 2017 affidavit Brenda Bistricer swears: (

b) I do not have and have never had a legal, beneficial, direct or indirect interest in the Joint Venture or in the Joint Venture Lands; (

c) The [Bistricer/Rubner Family] Trust has no interest in the Joint Venture or the Joint Venture lands and has never received any distributions with respect to the Joint Venture or the Joint Venture Lands and, at that, from either the Defendants or anyone else including Eda Rubner Realty or my mother. The Trust had no interest in the distributions from the Defendants to Eda Rubner Realty and has never been given any of the monies from those distributions by Eda Rubner Realty or my mother; (

d) I haven’t been assigned or transferred any interest in the Joint Venture or in the Joint Venture Lands; (

e) I have never received any distributions from the Defendants with respect to or on account of the Joint Venture or the Joint Venture Lands; [ 133 ] Brenda Bistricer denies that she owns or ever owned beneficial title in a one-third interest in the family’s investment in the Lower Fourth Joint Venture. Therefore, she says that she has never disclaimed or renounced any such interest.

Her counsel argues that a party cannot disclaim something that she does not know she owns. [ 134 ] Alternatively, she argues that if Brenda Bistricer’s conduct amounts to a valid disclaimer or renunciation, then it should only affect her interest after the point in which the ownership issue became clear.

In counsel’s submission, this would be a partial disclaimer that begins to run from the moment that the court delivers its declaration on the ownership issue. [ 135 ] In this case, the evidence shows that Brenda has intentionally, clearly, and unequivocally disclaimed or renounced any beneficial interest that she might have had. There is no other reasonable

interpretation of the multiple statements under oath, admissions, and submissions made by her during these proceedings.

She adopted this position after obtaining advice over a lengthy period of time with knowledge of the 1972 letter and understanding that the other parties were taking the position that she was a beneficial owner. [ 136 ] As recounted above, the evolution of her position is seen through her counsel’s correspondence, her position on Marvin’s sale of his interest, and then, finally, when she took her mother to make a new will in March 2014. [ 137 ] In my view therefore, Brenda Bistricer has effectively disclaimed or renounced her beneficial title in the Rubner family’s 10 per cent interest in the Lower Fourth Joint Venture by March 2014 at the latest.

Eda Rubner Validly Gifted Income Distributed up to the Date of her Incapacity [ 138 ] Brenda Rubner had renounced her interest in the Lower Fourth Joint Venture months before it made its first distribution of income to Eda Rubner. [ 139 ] Brenda Bistricer argues that although she did not own the joint venture interest, Eda Rubner had previously made a valid inter vivos gift to her of proceeds of income distributions that she received that were referable to her one-third interest after Eda Rubner paid tax on the money in her hands. [ 140 ] In order to establish a valid inter vivos gift, the recipient must show, a.

An intention to make a gift on the part of the donor, without consideration or expectation of remuneration, b. An acceptance of the gift by the donee, and c. A sufficient act of delivery or transfer of the property to complete the transaction. [ 141 ] See: Mcnamee v. Mcnamee , 2011 ONCA 533 , at para. 24 and McMurtry v. McMurtry, 2016 ONSC 2853 , at para. 51 . [ 142 ] The law is suspicious of claims of inter vivos gifts. It is very difficult to prove a donor’s intention.

There is also a high degree of risk that a wrongdoer may try to justify illicit receipt of funds as gifts to try to take advantage of this difficulty. Therefore, the law requires that people who claim to receive gifts meet very stringent proof requirements. As stated by Lofchik J. in Robertson v. Hayton , 2003 CarswellOnt 4457 (Ont SCJ), at para. 31 , 31 The standard of proof for intention to donate is high. The donee must show that that transaction was a gift by proving a clear and unmistakable intention on the part of the donor to make a gift to the donee.

In weighing the conflicting evidence it is not sufficient that the preponderance of evidence may turn the scale slightly in favour of the gift. The preponderance must be such as to leave no reasonable room for doubt as to the donor’s intention. It should be inconsistent with any other intention or purpose. If it falls short of going that far then the intention of gift fails. [ 143 ] In other words, the intention to gift must be unequivocal, unambiguous, and unmistakable. The evidence must show that the intention to gift is inconsistent with any other purpose (see also: Foley v.

McIntyre , 2014 ONSC 194 , at para. 143 , aff’d 2015 ONCA 382 ).

[144] The law’s concern is heightened when the donor of the gift is incapacitated. Subsection 14 (1) of the Evidence Act, RSO 1990, cE-23 provides, An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision onthe party’s own evidence, unless the evidence is corroborated by some other material evidence: 1.

A person who has been found, i. incapable of managing property under the Substitute Decisions Act, 1992... [145] Accordingly, regardless of whether the standard of proof is as high as set by Lofchik J., since Eda Rubner is now incapacitated,Brenda Bistricer requires corroboration of her claim that Eda Rubner made gifts to her. [146] Brenda Bistricer’s evidence is that Eda Rubner gifted all future distribution proceeds generated by her one-third interest at thefamily meeting in 2012/2013.

She claims that this position is corroborated by the 2014 wills and the fact that Joseph Rubner facilitatedher use of Eda Rubner’s cheque books. [147] The simple answer to this is that a promise to make a future gift is not recognized in law (see: Land v. Kaufman, [1996] OJ No1272, at paras. 296-298; and Schoppel v. Royal Trust Co., (BC SC), [1970] BCJ No 432, at para. 13). BrendaBistricer’s evidence is that Eda Rubner promised to gift all future proceeds: 629 Q. Okay. And it was your understanding when your mother gave you this gift she was giving you the gift with respect toall future distributions? A.

Exactly. [148] A gift intended to take effect at an indeterminate future time, for an indeterminate amount, is not a valid, binding gift. [149] Moreover, even if a future gift migh

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